COUNSEL FEES AND DIVORCE: WHO PAYS?

COUNSEL FEES AND DIVORCE: WHO PAYS?

Posted By
Previte Nachlinger

Counsel fees are the number one reason most are scared of the divorce process.
If one or both parties refuse to be reasonable and look at their divorce
as something that should engender cooperation, counsel fees can easily
get out of control and consume a family’s valuable financial resources.
The common question we get is: who pays for my counsel fees?

New Jersey is a State where normally everyone pays his or her own counsel
fees in court. There are only a few times in which one party can be found
liable for the other’s counsel fees and costs. By “costs”,
we mean filings fees, postage, copying, experts, and other related out
of pocket costs incurred during the divorce process. In family law cases,
including divorce, New Jersey’s court rules specifically allow the
court to compel one party to pay some or all of the other party’s
counsel fees and costs.

New Jersey Court Rule 5:3-5(c) authorizes the court to award counsel fees
and costs in family law cases. The trial court is required to consider
a variety of factors in determining if counsel fees are appropriate and
what the amount should be. These factors include: (1) the financial circumstances
of the parties; (2) the ability of the parties to pay their own fees or
to contribute to the fees of the other party; (3) the reasonableness and
good faith of the positions advanced by the parties; (4) the extent of
the fees incurred by both parties; (5) any fees previously awarded; (6)
the amount of fees previously paid to counsel by each party; (7) the results
obtained: (8) the degree to which fees were incurred to enforce existing
orders or to compel discovery; and (9) any other factor bearing on the
fairness of an award.

However, it is not terribly common for counsel fees and costs to be awarded
in divorces. There are several reasons for this. First, most divorces
settle, and it is unlikely that counsel fees will be part of a final settlement.
Most will not hold out on a settlement to simply include counsel fees,
particularly when all of the assets are being split. Second, courts typically
do not order counsel fees in the absence of bad faith. This term is quite
subjective and every judge has a different opinion on what constitutes
bad faith, making predicting counsel fees difficult. While failure to
comply with a court order is the number one reason counsel fees are ordered,
as that is clearly bad faith, most other situations are more difficult
to predict. Finally, courts usually want both parties to share the pain
and have motivation to settle. In other words, providing additional access
to counsel fees may encourage more litigation, which is exactly what the
court is trying to avoid.

In summary, it is possible your spouse may be ordered to contribute to
your counsel fees and costs. However, it is very unlikely that will occur
in a typical divorce. To find out how the court is likely to look at counsel
fees in your case,
contact us today for an initial consultation. We will not tell you want you want
to hear, but rather we will tell you what you need to know!